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ever qualified.



1835.] OF PENNSYLVANIA. 178

(Browning v. McManus.)

2. In that the proceedings, being ex parte, no notice to the
defendant of any of the meetings of referees, appears to
have been given.

3. In that the report is by referees, of whom two only ap-
pear to have been regularly appointed."

Mr. Holy, for the plaintiff in error, contended*:

1. That the court below had no power to substitute a referee
for one who had declined to serve, without the concurrence of
both parties, Shipper? Lessee v. Bush, (1 Dall. 251 ;) and that
the consent ought to appear upon the record. Russell v. Gray,
(6 Serg. & R. 145.)

2. That the award was defective ; because it did not appear that
the referees had been sworn or affirmed. [KENNEDY, J. This is
not required by the act of 1705 ; and it is not usual in practice.]

3. That the award was bad ; because the proceedings were ex
parte, and no notice appears to have been given to the defendant
or his attorney. The substitution having been made on the same
day that the meeting of the referees took place, notice ought not
to be presumed.

Mr. Zantzinger and Mr. D. P. Brown, for the defendant in
error, argued that the proceedings were regular, and that, at all
events, the remedy of the party was by application to the court
below. They cited Kyd on Awards, 34 (d) (Amer. Ed.;) Op-
penheimer v. Comly, (3 Serg. & R. 3 ;) Nagley v. Stewart,
(10 Serg. & R. 207.)

PER CURIAM. The exceptions are such as might be proper in
the court below, on a motion to set aside the award ; which is put,
by the act of 1705, on the footing of a verdict ; but they are not
in place here. We are incompetent, for instance, to enquire
whether the arbitrators were sworn, or the opposite party had
notice ; but these, being extrinsic* to the record, were open to
examination in the court below, by affidavit. The exception to
the substitution has color of foundation, but no more. The sub-
stituted arbitrator appears to have been appointed precisely as
the others were. The minutes are unusually short and unsatis-
factory ; but in a court of general jurisdiction, every thing is to
be presumed in favor of the regularity of a proceeding. In the
absence of contradiction by the record, then, we are to presume
that the defendant was present in person, or by counsel, and con-
sented to the substitution.

Judgment affirmed.

Cited by Counsel, 5 Casey, 253 ; 6 Id. 388 ; 1 Grant, 118.
Cited by the Court, 2 Jones, 184 ; 14 Wright, 534.
See also 9 Barr, 487 ; 5 Casey, 253.



179 SUPREME COURT [Dec. Term,

[*179] ['PHILADELPHIA, JANUARY 26, 1830.]

ROBINSON against WOELPPER.

IN ERROR.

Where one bequeathed the interest of a certain sum to his wife during her
life ; and his widow afterwards married again ; it was held that the in-
terest so accruing was not liable to a foreign attachment, at the suit of a
creditor of the second husband.

UPON a writ of error to the District Court for the City and
County of Philadelphia, the case was thus:

Rohinson had issued a foreign attachment against Othniel
Colescott ; and having obtained judgment in due course, issued a
scire facias against George Woelpper, the gamishee. Upon the
trial of this scire facias, the jury found a special verdict, setting
forth that Frederick Woelpper, the former husband of Rachel
Colescott, now wife of Othniel Colescott, the defendant in the at-
tachment, made his will, as follows:

" Be it remembered, that I, Frederick Woelpper, of Moyamen-
sing, in the County of Philadelphia, victualler, being of sound
mind and memory, praised be the Lord for the same, have thought
proper to make, and hereby do make, my last will and testament,
in manner following, that is to say :

First, I will that all my just debts and funeral expenses be
duly paid and satisfied.

1. Item. All the rest, residue, reversion, and remainder of my
estate, real and personal, whatsoever and wheresoever, I give,
devise and bequeath to my beloved daughter Margaret, and to
such other child and children as shall be born unto me, her and
their respective heirs and assigns forever, subject, nevertheless, to
the payment of one-third part of the nett interest and income
thereof, to my beloved wife Rachel, for, and during all the term
of her natural life ; which I give to my said wife in lieu and
bar of dower.

2. And in order the better to enable my executors to settle
my estate, I authorize them to sell and dispose of all my real es-
tate, whenever they shall deem proper ; and grant and convey
the same, or any part thereof, to the purchaser or purchasers
thereof, in fee simple.

And thirdly, I also give to my said wife, Rachel, all the fur-
niture belonging to this room, and likewise all my kitchen furni-
ture, &c.

Item. I nominate and appoint my said wife executrix, and my
brother, George Woelpper, executor of this, my last will and tes-
tament.



1835!] OF PENNSYLVANIA. 180

(Robinson v. Woelpper. )

* And I also appoint my said brother George, guardian ^^ Rft ,
of the person and estate of my said daughter, and of such
child and children which shall, or hereafter may be born unto
me.

In witness whereof, I have hereunto set my hand and seal this
twenty-first day of January, in the year of our Lord one thou-
sand eight hundred and eighteen."

That George Woelpper, the garnishee, was the executor named
in the said will, and as such, had in his hands, at the settlement
of his accounts, on the 21st of July, 1820, the sum of $7761 64 ;
which was invested at an interest of about five per cent., yearly,
and that the widow of the testator, and wife of the defendant, re-
ceived from the said George Woelpper, half yearly, one-third of
the interest on that sum, as the same from time to time fell due,
viz., in the months of January and July : and that since the issu-
ing of the foreign attachment in this case, the sum of $242 17
had accrued and was in the hands of the garnishee, as executor
of the said will.

The court below rendered judgment upon this verdict in favor
of the defendant ; whereupon the plaintiff removed the record to
this court.

Mr. Wheeler, for the plaintiff in error. The estate of the de-
cedent, as respects the sale of real estate, and payment of debts,
had been settled for twelve years before the issuing of the attach-
ment. The payments of interest which accrued during the cover-
ture, as made to Mrs. Colescott, were, in law, payments to the
husband : they had been received, and were held to his use. The
duty which George Woelpper undertook to perform, is a bald,
naked, trust ; not clothed with any direction, as to her sole and
separate use, upon her own receipt, &c. The point at which he
is to be contemplated, is when dividends are received ; immedi-
ately on which receipt, they are exposed to the implied assumpsit
in law, which is in favor of the husband alone. In the case of
Buckley v. Collier, (1 Salk. 114,) where the husband and wife
declared for work done by the wife during coverture ; the court
in overruling the action say " here is no express promise laid to
the wife ; here is nothing but the promise in law, and that must
be to the husband, who must have the fruits of the wife's labor.
Also, the advantage of the wife's work shall not survive to the
wife, but goes to the husband, for if the wife dies, her debts fall
upon him, and therefore so shall the profits of the trade to the
husband's executors." So, also, is the recent case referred to in
Clancey on the Rights of Married Women, at page 3 ; Glover v.
The Proprietors of Drury Lane. The husband is entitled abso-
lutely to all sums of money which have been received by a third



180 SUPREME COURT [Dec. Term,

(Robinson . Woelpper.)

person on her account, during the marriage ; and if he join her
r*ien w ^ ta h* m * n ^tions f r such causes, it *would be error.
A J Abbott and Wife v. Blofield, (Croke James, 644;) Brid-
goodv. Way, (2 Black, 1236 ;) Coke Litt. 351, a ; Fitch v. Ayer^
(2 Conn. Rep. 143,) where the interest on a legacy given to the
wife, was held recoverable by the husband alone. Griswold v.
Penniman, (Idem. 564,) where the husband's creditors were held
entitled to the wife's distributive share, which accrued during the
coverture. A legacy given to a married woman, must be paid to
the husband. Toller's Executors, 320 ; Matthew's Guide to Exe-
'cutors, 79. In Evans and Wife v. Norton's Executors, (4 Rawle's
Rep. 66,) the expression was, u I also give and bequeath unto the
said George Knorr, the sum of one thousand dollars, in trust, for
the use of her, the said Sarah Evans ;" and it was held, that the
husband was entitled to the legacy. The reasoning of the judge
who pronounced the judgment of the court, is aside from the cir-
cumstance of the husband being joined in the suit. Yoke v. Bar-
net, (1 Binney, 358,) contrasted with Jamison v. Brady, (6 Serg.
& R. 466,) is a notable illustration of the general principle, that
money accruing during the coverture, is the husband's ; there,
money belonging to the wife was applied at once to the payment
of his debt. Precisely the same thing was done in Krauze, as-
signee of Moll v. Beitel, (3 Rawle's Rep. 199.) This interest
would be attachable in Massachusetts, for the husband's debt.
Shuttleworth v. Noy, (8 Mass. Rep. 229.) There, the money
due on a promissory note given to the wife, was attached by the
creditor of the husband. It matters not that their process or
remedies are different from ours ; this circumstance does not
affect the principle. The law is the same in reference to the
rents of the real estate, accruing during the coverture. Coke
Litt. 162, b. 8. " A feme sole is seized of a rent in fee, &c.,
which is behind and unpaid, she taketh husband : the rent is be-
hind again ; the wife dieth ; the husband, by the common law,
should not have the arrearages grown due before the marriage ;
but for the arrearages become due during the coverture, the hus-
band might have an action of debt by the common law." OgneVs
case, (4 Coke's Rep. 61.) So also is the year book, 10 Henry,
6, 11 ; Chant, (counsel ;) " in the case where the wife, before the
coverture, had made a lease to a man for term of life, rendering
to her certain rent, and during the marriage the rent waa in
arrear, after the death of the wife, the husband shall not have
action of this rent." Babington, J. " The baron shall have
good action in this case that you have put." Rolle's Abr.
Baron and feme, 352. To the same effect is Torbert v. Twining,
(1 Yeates, 132.) The case is clear of the doctrine connected
with that of the wife's choses in action, because the right to these



1835.] OF PENNSYLVANIA. 181

(Robinson v. Woelpper. )

dividends, in the hands of the garnishee, is in the husband. The
law, on the subject of the wife's choses in action, is to be found
in Clancey, from page 3 to 8. The dividends received and em-
braced in the special verdict, are credits of the husband, and
are within the very words of *our attachment law, viz. : r*-ioo-i
" goods, chattels, moneys, effects, and credits of the de-
fendant, in the custody, possession, and charge, or due and owing
from any garnishee or garnishees." (2 Sm. L. 502.) The object
of the foreign attachment law, is to make responsible the effects
of the absent debtor, to the same extent as those of the present
debtor. If Colescott should be compelled to take the benefit of
our insolvent law,- his assignmant would embrace these credits.
(Ingraham on Insolvency, 2d ed. 223, 321.) . The attachment
may be dissolved by the entering of special bail. (1 Smith's L.
45, s. 2.) This case is different from that in 2 Watts. Rep. 90,
Dennison v. Nigh; because the estate there is not settled. A
trust for selling real estate was to be executed. The cases cited
by the court, in ruling the point, are not applicable to our case :
the one in 2 Ventris, 341, was clearly a case of a wife's chose in
action : that in 1 Rolle's Abr. 551, was not an interest coming
up to the point of assignability, according to Sommer v. Wilt,
(4 Serg. & R. 19.) It was an attempt to attach the interest of
a dispossessed owner of goods, in the hands of a tort feasor. As
to reduction into possession. The dividends, as received, had
always been punctually paid to Mrs. Colescott, before her mar-
riage, and after that event, till the time of the attachment, in a
way satisfactory to the husband. There was as much reduction
into possession as the nature of the thing admitted of. We are
to be governed by our acts of assembly, and not by the customs
of London. By the custom of London, it appears that a legacy
is not the subject of foreign attachment ; whilst this court holds it
to be an open question under our law.

Mr. Arundel, contra, cited Schuyler v. Hoyt, (5 Johns. Ch.
Rep. 190 ;) Jamison v. Brady, (6 Serg. & R. 466 ;) Lodye v.
Hamilton, (2 Serg. & R. 491 ;) Starret v. Wynn, (17 Serg. &
R. 130 ;) Dennison v. Nigh, (2 Watts, 90 ;) 3 Atkyns, 399 ;
5 Vesey, 520 ; 3 Br. Ch. Rep. 181 ; 1 Russell Ch. Rep. 24 ;
1 Bac. Abr. 480 ; 2 Atkyns, 206 ; 2 Vernon, 202 ; Clancey,
321, 353.

The opinion of the court was delivered by

HUSTON, J. There is scarcely any part of the law, in which
the distinctions have gone on nicer grounds, than in that which
relates to the rights of husband and wife. Nay, the decisions are
not always to be reconciled ; and in more than one instance, what



182 SUPREME COURT [Dec. Term,

(Robinson V. Woelpper.)

was held to be law at one time, has been subsequently expressly
overruled. I shall confine ray remarks to the case before us.

The cases cited do not, all of them, apply to the case before
us. This is not the case of money earned by the labor of the
wife, and sued for on the implied promise to pay ; nor is it the
case of money or goods devised to a married woman, or of a bond
or note given to a married woman it is a legacy devised to a
r*1K3T woman before *she was married. I may admit that the
J husband could sue for it alone could release it assign
it ; that it would go to the assignees of her husband, if a
bankrupt, or insolvent debtor.* Here he has not sued for it,
nor released, nor assigned it, nor been declared a bankrupt,
nor assigned and been discharged under the insolvent debtors'
act.

The position, that if a husband can sue for it alone, and re-
cover, it is his, and goes to his executors, and does not survive,
is not admissible. He may assign a term for years bring eject-
ment, and recover it in his own name. It may in his lifetime
be taken on execution for his debt ; and yet every book says,
that if he does not assign it does not bring an ejectment for it,
in his own name, but leaves it not sued for, or joins his wife with
him, as plaintiff, in the ejectment, or it is not taken in execution
for his debts, during his life, it survives to the wife ; and he
cannot prevent this, by devising it ; though he could have sold
or assigned it till the last moment of his life. In England,
legacies are recoverable generally in chancery, and this has in-
troduced a part of their law, as to husband making provision for
his wife, where the gift is to her, before he can recover the
bequest ; and on this subject, also, all the decisions are not
easily reconciled. We may say that, generally, where he has
made a settlement on her at the marriage, he gets legacies,
claiming as a purchaser, without any new settlement on recover-
ing the legacy. But this is not universally so. For where the
sum settled at the marriage is small, and the legacy large, he
has been compelled to settle a further sum. In this case, the
husband has made no settlement ; and his creditors can't claim
on that account. But this chancery power has not been exer-
cised in this state. It would seem, then, that although the right
of the husband is in many cases absolute, yet, if he does not
exercise the right, it expires with his life. He is entitled to the
property, to the term for years, the chose in action or legacy ;
but he is entitled to it, and owns it, in right of his wife ; and
when he dies without having exercised his right, her right is
superior to, and exclusive of all others. Husband and wife are,

* See 7 Watts & Sergeant, 169 ; 1 Harris, 563.



1835.] OF PENNSYLVANIA. 183

(Robinson v. Woelpper.)

in law, but one person. All rights to personal property which
were in her, by this legal fiction, are in him, as identified with
her, during his life ; and though he, having the power to sue or
dispose, may recover, and reduce to possession or dispose of the
chose in action without her, yet the right still remains in her so
far, that if she survives, she has it precisely as she had it before
marriage.

The act of the husband only, can divest this right of the wife.
A creditor can imprison a man if he does not pay his debts, and
has no property on which to levy it. But, although in prison,
the creditor cannot compel him to assign his own bonds, given
directly to himself; nor the bonds or legacies given to his wife
before her marriage : and I think no case or dictum can be found
to show, *that during his life, or after his death, the \-*-\QA-\
bond or legacy to the wife, before marriage, can be "-
taken for his debt. If he wishes to be discharged from prison
under acts for relief of insolvent debtors, he must assign them ;
and then, it is the act of assigning, which passes them to the
creditors. The fact of his being indebted, and no other fund to
pay creditors, will not pass them. The law seems to require
some act of the husband, to take them from the wife. If no act
is done by the husband, the chose in action, which was the wife's
before marriage, must be hers after his death. In this case, the
husband has done no act ; has not sold, released, or assigned
either voluntarily or as a bankrupt. The result of this may be,
that a husband may have a right to money which he could get,
but which his creditors cannot reach. So a bond may be due to
him, or a debt ; his creditors cannot levy on either of these ; and
if he will lie in jail, they cannot obtain them during his life. A
bond to himself, or a debt to himself, may, after his death, be
reached by his creditors ; but a legacy or debt to the wife, before
her marriage, if not collected by the husband, his creditors can-
not obtain: for, as it was originally in the wife, and the husband's
right arose from the fiction of the law, which, for many purposes,
considers husband and wife but one person, the law remits to the
wife her original right on the death of the husband ; and neither
heirs nor creditors of the deceased husband have any right
to it. The very point now before us, was decided by this court,
in 2 Watts. 90 ; for this yearly sum is the legacy. The be-
quest is not of the principal to the wife, and the interest annu-
ally. If it were so, I am not aware that it would make any dif-
ference. If a bond is due to a woman before marriage, and
neither principal nor interest disposed of by the husband during
life, the whole, on his death, goes to his wife. So of a legacy
bearing interest.

Whether any legacy can be attached for the debt of the



184 SUPREME COURT. [Dec. Term,

(Richards . Murphy.)

legatee,* has not yet been decided in this state, and we say noth-
ing about it.

Judgment affirmed.

Cited by the Court below, 12 Casey, 178.

Cited by Counsel, 3 Wharton, 417 ; 8 Watts, 11 ; 7 Watts & Sergeant,
418 ; 1 Barr, 293 ; 4 Id. 391 ; 9 Id. 502 ; 10 Id. 423, 433 ; 4 Harris, 392.

Cited by the Court, 6 Watts & Sergeant, 299 : 5 Barr, 263 ; 9 Wright,
528.

See also, 2 Barr, 72 ; 6 Penn. Law. Jour. 97 ; 9 Harris, 250 ; 11 Id. 463.



[*185] ['PHILADELPHIA, JANUARY 26, 1863.]

RICHARDS and Others against MURPHY.

IN ERROR.

In trover against one who had purchased goods from a person alleging
himself to be the owner, declarations by an agent of the plaintiff, made
at the time of the purchase by the defendant, disclaiming title in the
plaintiff, were held to be admissible in evidence on the part of the de-
fendant.

ERROR to the District Court for the City and County of Phila-
delphia.

An action of trover was brought to September term, 1882, of
the District Court, by Mark Richards, John Hemphill, George
M'Clelland, and Tobias Huber, against James Murphy, to re-
cover the value of certain pieces of lumber, alleged to be the
property of the plaintiffs, and to have been converted by the de-
fendant.

It appeared, upon the trial, that the plaintiffs were concerned
together in the business of planing boards by steam power, and
received lumber for that purpose : that a quantity of lumber was
landed upon the wharf of Davis & Biddle, on the river Schuyl-
kill, at the request of one Inslee, for the purpose of being carted
thence to the lumber yard of the plaintiffs, upon a contract made
by Inslee on their behalf, for the purchase of it from the con-
signees. It was not, however, taken away from the wharf ; the
plaintiffs refusing to ratify the contract ; but, while there, part
of it was sold to the defendant by one Trimmels, who alleged
himself to be the agent of the consignors, and to whom the de-
fendant paid the price agreed upon between them. It appeared,
also, that the consignors of the lumber had recovered the value

* See 2 Wharton, 332.



1835.] OF PENNSYLVANIA. 185

(Richards . Murphy.)

against the present plaintiffs, in an action on the contract. The
plaintiff having proved the possession of the lumber by the defend-
ant, and that the property was in the plaintiff, by reason of the
recovery of the price or value of it from them by the owner ; the
defendant offered in evidence declarations of Inslee, made after
the landing of the lumber on the wharf, and before the purchase
by the defendant that the lumber did not belong to the plaintiffs.
It was shown that Inslee was employed in the lumber yard of the
plaintiffs, and had charge of their planing machine. The plain-
tiffs' counsel objected to the admission of Inslee's declarations;
but the judge admitted them, and the evidence having been gone
through, charged the jury in .substance as follows:

" There being no dispute about the value of the lumber, the case
depends upon a few plain principles. The only person known in
the business, on the part of the plaintiffs, was Mr. Inslee, who had
applied * to Davis & Biddle for permission to land the r-^ ^-,
lumber, and throughout acted for the plaintiffs, who
must take his acts throughout. Unless somebody else is answer-
able, one or other of these parties must lose their money. It ap-
pears that Inslee, after having been repeatedly sent to by Davis
& Biddle, declared that the concern had nothing to do with this
lumber, and would not receive it, and left Davis & Biddle to take
their own course with regard to it ; and in consequence of that,
as a point of law, any person purchasing for, or with the knowl-
edge and approbation of Davis & Biddle, had a right to take the
property ; and if Davis & Biddle chose to sell or allow a sale, by
a person they honestly believed had a right to sell, after Inslee
had disclaimed the ownership, the purchaser may hold the prop-
erty, and the plaintiff may look to Davis & Biddle, or to the
person actually selling, if they have any claim. But as a point
of law, Murphy is protected, having purchased with the knowl-
edge and approbation of Davis & Biddle. Murphy used due pre-
caution, received the lumber from a responsible house, and he is
protected. If he is responsible, then every one who has a piece
of this wood in a bureau may also be made responsible, and may
be sued on the same principle. There must be some limit to a
man's following his property."

The plaintiff's counsel excepted to the admission of Inslee's
declarations, and to the charge of the court ; and, having removed
the record to this court, assigned the following errors :

"1. The judge who tried the cause, permitted the declarations
of John Inslee to be given in evidence to the jury to affect the
rights of the plaintiffs, the said Inslee being no party to the re-
cord, and no authority shown to bind the plaintiffs by his declara-
tions the said evidence being objected to by the counsel for the
plaintiffs.



186 SUPREME COURT [Dec. Term,

(Henry v. Sims.)

2. The judge charged the jury, that there being no dispute as
to the value of certain lumber which was the subject in contro-
versy, and the said Inslee having applied to land the said lumber,
and being the only person known in the business on the part of
the plaintiffs, his declarations and acts bound them throughout.

3. The judge charged the jury, that the plaintiffs were pre-



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